MAKING THE CASE FOR A LEGISLATIVE FOOTPRINT IN THE EP

Stressing that the integrity of law making at EU level needs to be above suspicion, Transparency International (TI) has asked the EP  under the leadership of President Schulz to be clear about who is influencing EU policies. TI advocates that a ‘legislative footprint’ should be attached to each European Parliament report, detailing all the relevant input received from lobbyists/interest representatives for draft policies, laws and amendments

The legislative footprint is a powerful signalling and screening device for the EP as an institution, for individual MEPs, and the public in general. It would not only improve internal transparency but also the legitimacy of EU legislative output. In addition to strengthening the EP, this would provide tangible benefits to individual MEPs in their work.

The legitimisation and improvement of the quality of EU legislative output are part and parcel of the raison d’être of the European Parliament. The vast majority of legislative acts under the ordinary legislative procedure are adopted as first-reading agreements (72 % in the 2009-2014 term). Consequently, agreement between Council and the EP is reached in informal trilogues with the European Commission prior to the first reading. This implies a “shift of legislative decision-making from public inclusive to restricted secluded arenas” and involves delegation of negotiation mandates to actors deliberating on behalf of the EP. The preparation and passing of legislation can thus be likened to decision-making in a market with imperfect information. First committee members, and then the plenary need to decide on whether to support the deals or not. This applies despite their not being part of the actual negotiation, not necessarily comprehending the technical detail of a dossier, and time constraints which hardly allow making individually informed decisions. Therefore, MEPs delegate certain responsibilities to committees, and in committees to the chair, the rapporteur and shadow rapporteur, as well as the party group coordinators. But due to asymmetric information it is hard for any individual MEP to assess whether a specific deal is good, let alone the best possible deal. Signalling and screening have long been identified as mechanisms to overcome, or at least mediate, asymmetric information.

Firstly, the legislative footprint is a screening device allowing an assessment of which stakeholders a key MEP met, received, and heard from while drawing up legislation. This benefits internal EP transparency.

In the EU political system at large, this would help to identify asymmetrical lobbying and identify imbalances in input. For the public, it means that citizens can gain insight into who sought to influence the legislation impacting on their lives. Beyond the identification of conflicts of interest and biases in access, it provides citizens with an opportunity to hold their representatives to account. In the long run, the footprint might have even more beneficial implications: MEPs might be questioned, or might wish to explain themselves, as to why they held some meetings and not others. To the extent that this might happen, the legislative footprint would transform the EP and improve debate in the European public sphere between citizens and their representatives.

For individual MEPs, the legislative footprint would constitute a helpful tool in their task of assessing the legislative behaviour of, and deals struck by, their colleagues. It would mediate concerns about the informal developments towards early agreements in providing MEPs with insight into who their colleagues consulted, and the possibility to more easily question the results and interests involved. Thus, it also reinforces transparency among the representatives themselves.

Secondly, the legislative footprint is a device signalling the informed nature and strong basis – in other words: the legitimacy – of a position to the other institutions, fellow MEPs, and citizens. Putting data on stakeholder consultations into the public domain will show that MEPs comprehensively consult interests, thus bolstering the legitimacy of the EP and EU legislative output in line with the classic role of the EP.

For individual MEPs, the footprint is an opportunity to signal to their constituency what they care about. They can thus show how they take citizens’ concerns seriously, and how they work hard to achieve good legislation.

For the EP as a whole, the information from legislative footprints can signal to the European Commission and the Council the solid foundations of its position. Having consulted stakeholders, the bargaining position of the EP vis-à-vis the other institutions is strengthened. MEPs have long worked to set the EP in a sound position, so it is unclear why they would stop now.

At the same time, the legislative footprint could help the EP establish some transparency for co-decision early agreements by helping mediate the concerns of MEPs and the public, thus boosting confidence in the legislative procedure and its openness. In the long run, moreover, these dynamics might push stakeholder consultations from secluded arenas to fact-finding hearings in committee or online consultations, instead of every MEP struggling on their own. Thus, the footprint might streamline interest representation and make it more efficient.

How could this be achieved? Application: precedent and practice

The legislative footprint would take the shape of an annex to legislative reports that details who key parliamentary actors met, received, and heard from while drafting legislative texts.

In order to outline the scope of an effective legislative footprint, three questions are instrumental:

1.  What qualifies as a ‘meeting’ or contact?: Meetings inside and outside the EP, with registered and non-registered lobbyists, need to be included in the scope of the footprint. If deemed substantial, similar contacts by phone or correspondence should be included too. Would it not be a double standard if different rules applied to meetings in the Parliament and the Place du Luxembourg, one of the hubs of lobbying activity in Brussels? Or if different rules applied to a lobbyist being signed in to the Parliament by an MEP for an appointment and those entering independently after registration?
2. Who qualifies as a ‘relevant’ MEP? Ideally every committee member, as they have the opportunity to table amendments. At a minimum, the committee chair, the rapporteur and shadow rapporteurs as those involved in drafting a report, and coordinators as those influencing voting decisions of groups should provide footprints. These members are also usually involved in trilogue negotiations. They would thus need to disclose information on meetings. Would, in any different context, these actors deny that they are ‘relevant’ in drawing up legislation? Of course, it should be welcomed if MEPs or groups systematically published data going beyond that requirement.
3.  Who qualifies as a ‘lobbyist’? In addition to those registered and non-registered interest representatives in principle covered by register, one group of lobbyists enters and exits the EP without being affected by the transparency register – member state officials, and to a lesser extent, third-country officials. Who would question the fact that meetings of the UK Permanent Representation with MEPs working on financial regulation should be treated similarly to those of other interest representatives? Member state and third-country officials are thus lobbyists vis-à-vis the EP and meetings with MEPs should accordingly be recorded in the framework of the footprint.

In a 2008 Resolution, the Parliament acknowledges that a rapporteur may, as he or she sees fit (on a voluntary basis), use a  “legislative footprint”, i.e. an indicative list, attached to a Parliamentary report, of registered interest representatives who were consulted and had significant input during the preparation of the report; considers it particularly advisable that such a list be included in legislative reports.

Against this backdrop, MEPs advocating transparency, have previously provided footprints.  British conservatives have published their meetings with interest representatives in so-called lobbying contact reports, even though the quality of the data differs from member to member and has been published on a six-monthly basis only.

Most of the administrative burden could be carried by technology, if interest representatives were required to state the purpose of their visit to the EP. A bit of effort is required, though. Since not all contacts take place in the EP, and since also representatives of states and individually signed-in lobbyists should fall under the scope of the footprint, the information electronically gathered would need to be complemented by MEPs and their staff. But would transparency and a strong signal to citizens not be worth this effort on the part of MEPs and their teams? Would keeping a list of government representatives and lobbyists granted meetings really represent an insurmountable administrative burden?

In sum, the legislative footprint needs a group of enterprising MEPs who will seize this opportunity now. By adopting this measure, the EP would position itself as a vanguard of transparency. But more than that, a vote on the legislative footprint would be a gift to the EP’s political groups. By calling for a roll-call vote, they can force others to show how serious they are about promises to achieve transparency.

Failure to step up to the opportunity would suggest a cartelisation of actors in the EP, and raise suspicion about whether the EP and its leadership structures are able to regulate themselves. By embracing the idea of a legislative footprint as spelled out here, the EP could become a leader on transparency in the EU.